scholarly journals 2018 WA Lee Equity Lecture: Equity in an Age of Uncertainty

2019 ◽  
Vol 18 (2) ◽  
pp. 137
Author(s):  
David Russell
Keyword(s):  
Common Law ◽  
Honorary Member ◽  
Teaching Community ◽  
University College ◽  
The Common ◽  
The Hague ◽  
The One

May I commence by acknowledging the honour done to me by asking me to give this, the nineteenth WA Lee lecture. I studied Equity, in part, under Professor Lee and he was a prominent member of the teaching community at my University College.  At that time, and later, I came to appreciate the extent to which his reputation was established, not just in Australia, but throughout the common law world. Perhaps the most telling of a number of indications, once publications such as the masterful Ford & Lee are put to one side, is the fact that when Donovan Waters QC, former Oxford don, STEP Honorary Member and one of the negotiators of the Hague Trust Convention,[1] visited Australia as a guest of STEP, the one Australian he specifically asked us to arrange for him to meet was Tony Lee.  So to give this lecture before an audience including Tony Lee fills me with not a little trepidation. He – and no doubt many others of you – will be immediately aware of any errors or imperfections.  It is small consolation that, on this occasion at least, he will not be marking the paper.        

scholarly journals 2018 WA Lee Equity Lecture:

2019 ◽  
Vol 18 (2) ◽  
pp. 137
Author(s):  
David Russell AM RFD QC
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Hague Convention ◽  
Honorary Member ◽  
Teaching Community ◽  
University College ◽  
The Common ◽  
The Hague ◽  
The One ◽  
Fiduciary Liability

May I commence by acknowledging the honour done to me by asking me to give this, the nineteenth WA Lee lecture. I studied Equity, in part, under Professor Lee and he was a prominent member of the teaching community at my University College. At that time, and later, I came to appreciate the extent to which his reputation was established, not just in Australia, but throughout the common law world. Perhaps the most telling of a number of indications, once publications such as the masterful Ford & Lee are put to one side, is the fact that when Donovan Waters QC, former Oxford don, STEP Honorary Member and one of the negotiators of the Hague Trust Convention,[1] visited Australia as a guest of STEP, the one Australian he specifically asked us to arrange for him to meet was Tony Lee.  So to give this lecture before an audience including Tony Lee, fills me with not a little trepidation. He – and no doubt many others of you – will be immediately aware of any errors or imperfections.  It is small consolation that, on this occasion at least, he will not be marking the paper.  In choosing the topic for the paper, I had in mind a paper given by the Hon Dyson Heydon, AC QC, to the first STEP Australia Conference.[2]  Mr Heydon QC observed that: This paper is an edited version of a paper presented at the 2018 WA Lee Equity Lecture delivered on 21 November 2018 at the Banco Court, Supreme Court of Queensland, Brisbane. * AM RFD QC; BA (UQ), LLB (UQ), LLM (UQ). [1] Adopted by Australia and implemented in the Trusts (Hague Convention) Act 1991 (Cth). [2] JD Heydon, ‘Modern Fiduciary Liability: the Sick Man of Equity’ (2014) 20 Trusts & Trustees 1006.

Surrender to the inevitable?

1999 ◽  
Vol 58 (1) ◽  
pp. 1-48
Author(s):  
Louise Tee
Keyword(s):  
Common Law ◽  
Pragmatic Approach ◽  
Trust Mechanism ◽  
Land Registration ◽  
Land Transfer ◽  
Adverse Possession ◽  
The Common ◽  
The Times ◽  
The One ◽  
Substantive Law

ADVERSE possession and registered land are unlikely bedfellows–the one originating in the common law idea that a freehold estate results from possession and the other premised upon registration validating title. Indeed, when registration of title was introduced into England and Wales in the nineteenth century, acquisition of title to registered land by adverse possession was prohibited–see section 21 of the Land Transfer Act 1875. However, a more pragmatic approach then ensued, and the Land Registration Act 1925, s. 75, expansively provided that the Limitation Acts should apply to registered land in the same manner and to the same extent as those Acts applied to unregistered land. But technically, of course, this was impossible, and the section detailed a special trust mechanism for registered land alone. Section 75 thus clearly illustrates the inherent difficulties in trying to retain the substantive law of unregistered land within a registered context. Tensions are inevitable, because of the very different conceptual bases of the two systems. In Central London Commercial Estates Ltd. v. Kato Kagaku Ltd., The Times, 27 July 1998, Sedley J. was directly faced with such tension, as he strove to determine the effect of section 75.

Is the Prisoner's Character Indivisible?

1953 ◽  
Vol 11 (3) ◽  
pp. 377-394 ◽  
Author(s):  
R. N. Gooderson
Keyword(s):  
Common Law ◽  
The Other ◽  
Sexual Morality ◽  
The Common ◽  
The One ◽  
A Charge

“There is no such thing known to our procedure as putting half a prisoner's character in issue and leaving out the other half.” This observation fell from Humphreys J. in delivering the judgment of the Court of Criminal Appeal in R. v. Winfield (1939). The purpose of this article is to suggest that at common law this statement is not borne out by principle or by authority. The effect on the common law where the prisoner elects to go into the witness-box in exercise of the statutory opportunity created by the Criminal Evidence Act, 1898, will also be considered. The type of situation that arises is illustrated by Winfield's Case, where the facts, in brief, were that on a charge of indecent assault, W. put in issue his good character for sexual morality, and the prosecution in cross-examination proved his previous convictions for offences involving dishonesty. The court held that such cross-examination was proper. The question is whether the evidence of the good or bad character of the prisoner must be confined to the trait or traits relevant to the type of crime charged. It will be submitted that the evidence must be so confined. On an indictment for murder, evidence of the good or bad character of the prisoner for honesty will be inadmissible. Not only the crime charged but also the circumstances in which it is alleged to have been committed must be considered. If the murder is committed with a hammer, character for peace and quiet on the one hand and for violence on the other will be admissible, but not if it is a case of slow poisoning.

Cargo Risks: “Dangerous” Goods

1996 ◽  
Vol 55 (3) ◽  
pp. 601-613 ◽  
Author(s):  
F. D. Rose
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Contractual Obligation ◽  
Dangerous Goods ◽  
Specific Rule ◽  
The Common ◽  
The Hague ◽  
Merchant Shipping

A shipper does not have unlimited freedom as to what he may have transported by sea. Restrictions on the goods which a charterer or cargo-owner may ship are imposed by the common law, the terms of the contract and statute. The statutory sources of control of what are normally referred to as dangerous goods may be divided into three categories: those under the Hague-Visby Rules (principally art. IV(6)); those under the Merchant Shipping Act 1995; and other legal sources. Provision is also made by the Hamburg Rules. Where a prohibition against the shipment of goods is not laid down by an express contractual obligation or specific rule of law, it is likely to be treated as depending on an implied term or collateral warranty.

scholarly journals THE DEVELOPMENT OF A “RESCUE CULTURE”. INSOLVENCY GLOBALIZATION

2018 ◽  
Vol 12 (2) ◽  
pp. 1-16
Author(s):  
Ionel DIDEA ◽  
Diana Maria ILIE
Keyword(s):  
Common Law ◽  
Legal Culture ◽  
The Self ◽  
General Will ◽  
Legal Form ◽  
Global Context ◽  
Structural Coherence ◽  
Self Adaptation ◽  
The Common ◽  
The One

We are heading towards a phenomenon of internationalization and globalization of the substantiation of law, due to the fact that Romania is, inevitably, part of the process of integration and reflection of its own identity in a European and global context. Ultimately, law derives from observing the society and analysing its needs, passing through the filter of equity the final legal form in order to ensure the completeness of law, and also the structural coherence of society. Although the continental European legal culture is attached to the “general will”, globalization managed to erase many of the symbolical boundaries between the legal culture promoted by the Common-law, the one promoted by our system deeply markedby the Romano-Germanic System, and also the legal system outlined by American Realist trends, thus allowing the law to become the result of the self-adaptation of the society, not just the creation of the State.

scholarly journals Creating a Servitude to solve an Encroachment Dispute: A Solution or creating another Problem?

2017 ◽  
Vol 16 (5) ◽  
pp. 454
Author(s):  
Zsa-Zsa Temmers Boggenpoel
Keyword(s):  
South African ◽  
Common Law ◽  
Court Order ◽  
General Application ◽  
African Context ◽  
Personal Level ◽  
The Common ◽  
The Creation ◽  
The One ◽  
The Right

The main focus of this note is the case of Roseveare v Katmer, Katmer v Roseveare 2013 ZAGPJHC 18, which provides an interesting (though possibly constitutionally problematic) perspective to the encroachment problem. The decision in this case has opened the door for courts to create servitudes in instances where encroachments are left intact based on policy reasons. Concerning these policy reasons, the note investigates the reasonableness standard as it was applied in the case. It is argued that it is important to differentiate between the applications of reasonableness in encroachment cases and alleged nuisance disputes. The decision in this case creates the impression that courts may now order that a servitude be registered in favour of the encroacher against the affected landowner’s property. It seems as though the court had in mind the creation of a praedial servitude to justify the continued existence of the encroachment. The servitude is created by court order against the will of the affected landowner. At common law, the creation of a servitude in this respect does not exist, and the authority from which the power derives to make an order like this is not entirely clear. The court also does not provide any authority for the creation of the servitude in favour of the encroacher. Consequently, it is argued that this may have serious constitutional implications. For one, lack of authority for the deprivation that results may be unconstitutional because there is no law of general application that authorises the deprivation in terms of section 25(1). The creation of a servitude to explain the continued existence of the encroachment is not automatically included in the general discretion to replace removal with compensation. It is contended that an order that forces the affected landowner to register a servitude in favour of the encroacher to preserve the existing encroachment situation will be in conflict with section 25(1) as far as the common law does not authorise such an order. Furthermore, an order creating a servitude against the affected landowner’s will need to be separately justified in terms of the non-arbitrariness requirement in section 25(1). In this respect, the order will be unjustified and therefore arbitrary on both a general and personal level. Although this decision eliminates the enduring problem in encroachment law concerning the rights of the respective parties to the affected land where encroachments are not removed, it is reasoned in this note that the solving of this problem may have created another one. The decision is undoubtedly a step in the right direction, in so far as the court has attempted to provide clarity in terms of the rights to the encroached-upon land. However, the absence of authority either in terms of the common law or legislation to create a servitude in this context, indicates that courts should avoid orders of this nature because of their implications. If legislation is enacted to regulate building encroachments, it may be useful to explain what happens when the encroachment is not removed and it may also provide the required law of general application to prevent constitutional infringement. The legislation should specify the nature of the right acquired by the encroacher, which in the South African context should probably be a servitude created against the affected landowner’s property. This may ensure that the required authority exists for the creation of the servitude and would also provide the necessary justification to prevent the arbitrary deprivation of property. It is accordingly submitted that the unnecessary confusion that results from the inability to explain the outcome (or provide sufficient reason) on the one hand, and the possible constitutional infringement due to the lack of authority on the other, may therefore be cleared up by the suggested legislation.

Coherence and Continuity: A Study in Comparative Codification

1987 ◽  
Vol 22 (2) ◽  
pp. 184-218 ◽  
Author(s):  
Celia Wasserstein Fassberg
Keyword(s):  
Common Law ◽  
Characteristic Mode ◽  
Historical Process ◽  
One Dimensional ◽  
Conceptual Coherence ◽  
Legal Provisions ◽  
The Common ◽  
Internal Coherence ◽  
The One ◽  
Linguistic Fact

The English common law is frequently referred to as a seamless web; continental lawyers tend rather to think of law in terms of internal coherence and consistency. This is not merely a linguistic fact, and the terms are not simply interchangeable. Each reflects the characteristic mode of thought and of development in its respective system: the common law constantly and gradually emerging as a cumulative historical process; continental law stemming from, and in every case ultimately resting on interpretation of, codes, the product of a moment in history. Thus, although they are both capable of denoting the same idea of wholeness, each term has a slightly different connotative emphasis, the one stressing historical coherence and the other emphasising conceptual coherence.This is but one example of the proposition that institutions can not be imported wholesale, that foreign legal provisions, and terms of thought and reference, have to be evaluated beyond their immediate superficial appearance before they may be adopted or used as measures for local purposes. All such institutions have both a historical and a contextual significance which makes comparison on the level of one-dimensional questions such as, “Which is the better rule or the more attractive term?” meaningless.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 11 Common Law Africa: Common Law African Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Oppong Richard Frimpong
Keyword(s):  
International Law ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
International Treaties ◽  
African Countries ◽  
International Convention ◽  
Judicial Decisions ◽  
The Common ◽  
The Hague

This chapter studies the common law African countries Gambia, Ghana, Kenya, Malawi, Nigeria, Sierra Leone, Tanzania, Uganda, and Zambia. Their main source of private international law rules is judicial decisions or case law. Because of the relatively underdeveloped nature of their private international law regimes, foreign case law often serves as an important source of persuasive authority. In this regard, the jurisprudence of the English courts is particularly persuasive and is often referred to by the courts. In general, an international convention or treaty does not have the force of law in the legal systems of the countries under study, unless it is expressly incorporated into national law. In essence, they are dualist countries. However, courts in some of the countries under study have demonstrated a willingness to seek guidance from international treaties that are not yet domestically in force, if the circumstances are appropriate. Thus, it is possible, that courts in the countries under study may be receptive to the Hague Principles, especially if argued by counsel.

The Indian Legal System

2008 ◽  
Vol 36 (2) ◽  
pp. 242-244 ◽  
Author(s):  
B.N. Srikrishna
Keyword(s):  
Legal System ◽  
Common Law ◽  
British Rule ◽  
The Common ◽  
British Commonwealth ◽  
The One ◽  
Indian Values

The legal system in India follows the common law model prevalent in the countries which were at one time under British Rule or were part of the British Commonwealth. The jurisprudence followed in India is almost the same as the one prevalent in England, though it has been cross-fertilized by typical Indian values.

scholarly journals The Common Law Choice of Law Rules for Resulting and Constructive Trusts

2005 ◽  
Vol 54 (4) ◽  
pp. 855-883 ◽  
Author(s):  
Adeline Chong
Keyword(s):  
Common Law ◽  
Hague Convention ◽  
Choice Of Law ◽  
Foreign Law ◽  
The Common ◽  
The Hague ◽  
English Law ◽  
The Law ◽  
The Hague Convention ◽  
Rules Set

There is a dearth of authority and in-depth discussion concerning what the choice of law rules are for claims involving the assertion that property is held on a resulting or constructive trust. It is usually thought that the choice of law rules set out by the Hague Convention on the Law Applicable to Trusts and on their Recognition (hereafter the ‘Hague Trusts Convention’), as enacted into English law by the Recognition of Trusts Act 1987, apply. However, it is arguable that this is not so for some types of resulting and constructive trusts, namely those governed by a foreign law; or, at the very least, that some doubt exists as to whether the Hague choice of lawrules apply to all resulting and constructive trusts. It is therefore important that the common law choice of law rules for such trusts is clearly elucidated. Unfortunately, this is an area of the law that is distinctly undeveloped. The aim of this article is to consider what are or should be the common law choice of law rules for resulting and constructive trusts.

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